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2019 DIGILAW 1313 (ALL)

Jagannath Yadav v. State of U. P.

2019-05-14

ASHWANI KUMAR MISHRA

body2019
JUDGMENT : Ashwani Kumar Mishra, J. 1. This writ petition is directed against an order dated 11th December, 2013; whereby petitioner's claim for being regularized in the employment of respondent has been rejected. The order passed by Divisional Director, Social Forestry Division, Mau records that petitioner's claim for regularization is not covered under the provisions of U.P. Regularization of Daily Wages Appointments of Group 'D' Post Rules 2001 (hereinafter referred to as the 'Rules of 2001'), inasmuch as, petitioner has not worked from July, 1991 to June, 1998 and has otherwise not being working after March, 2003. 2. It transpires that petitioner had earlier approached this Court by filing Writ Petition No. 69063 of 2011 with the grievance that his representation regarding regularization of his services is not being examined and consequently this Court directed his grievance to be considered by a reasoned order. While requiring the respondents to consider claim of the petitioner, it was observed that the respondents shall, while deciding petitioner's claim, keep in view the law laid down by the Apex Court in State of U.P. and others v. Putti Lal, (2002) 2 UPLBEC 1595 and this Court in Rakesh Chandra Srivastava v. State of U.P. and others, 2008 (1) ADJ 371 and Janardan Yadav v. State of U.P. and others, 2008 (2) ESC 1359. 3. Consideration of petitioner's claim for regularization has to be examined with reference to the provisions of the Rules, 2001. Rule 4 of the Rules of 2001 would relevant for the present purposes and is reproduced hereinafter: "4. Regularisation of daily wages appointments on Group 'D' posts.--(1) Any person who- (a) was directly appointed on daily wage basis on a Group 'D' post in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of these rules; and (b) possessed requisite qualifications prescribed for regular appointment for that post at the time of such appointment on daily wage basis under the relevant service rules, shall be considered for regular appointment in permanent or temporary vacancy, as may be available in Group 'D' post, on the date of commencement of these rules on the basis of his record and suitability before any regular appointment is made in such vacancy in accordance with the relevant service rules or orders. 2. 2. In making regular appointments under these rules, reservations for the candidates belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes of citizens and other categories shall be made in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and the Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time and the orders of the Government in force at the time of regularisation under these rules. 3. For the purpose of sub-rule (1) the appointing authority shall constitute a Selection Committee in accordance with the relevant provisions of the service rules. 4. The appointing authority shall, having regard to the provisions of sub-rule (1), prepare an eligibility list of the candidates, arranged in order of seniority as determined from the date of order of appointment on daily wage basis and if two or more persons were appointed together, from the order in which their names are arranged in the said appointment order. The list shall be placed before the Selection Committee along with such relevant records pertaining to the candidates, as may be considered necessary, to assess their suitability. 5. The Selection Committee shall consider the cases of the candidates on the basis of their records referred to in sub-rule (4), and if if considers necessary, it may interview the candidates also. 6. The Selection Committee shall prepare a list of selected candidates in order of seniority, and forward the same to the appointing authority." 4. Learned counsel for the petitioner places reliance upon a judgment of this Court in Nanku v. State of U.P. and others, Writ Petition No. 5174 of 2014. This Court in Nanku (supra) made following observations: "The question whether the Rules 2001 requires continuous service throughout, i.e., from the date of initial engagement till the commencement of Rules 2001 has been subject-matter of consideration of this Court in Civil Misc. Writ Petition No. 16842 of 2003, Jag Lal and others v. Director, Horticulture, U.P. Government, Lucknow and others decided on 21.5.2003. Writ Petition No. 16842 of 2003, Jag Lal and others v. Director, Horticulture, U.P. Government, Lucknow and others decided on 21.5.2003. After analysing the provisions of Rule 4 (1) of Rules 2001, it has been held as under: "The object and purpose of the above quoted Rules of 2001, is to obtain regularisation of the appointees, directly appointed on daily wages basis on a Group 'D' posts in the Government service before June 29, 1991 and is continuing in service as such on the date of commencement of the Rules. The Hindi version of the Rules uses the words "Is Niyamawali Ke Prarambh Ke Dinank Ko Is Roop Me Niranter Sevarat Ho" in Rule 4(1)(a) where as English Gazette notification mentions the words "continuing in service as such on the date of commencement of these Rules" in the same Rules in Rule 4(1)(a). There is apparently a difference in the expression. Whereas "Nirantar Sevarat Ho" means that such appointee has been in continuous employment on the date of commencements of the rules, the English version means that he is continuing in service as such on the date of commencement of the Rules. Article 348(3) of the Constitution of India provides that the translation of the order, Rule, Regulation or bye-law of the same in English language, published under the authority of the Governor of the State in the Official Gazette of the State shall be deemed to be the authoritative text thereof. In Nityanand Sharma v. State of Bihar, (1996) 3 SCC 576 and in Vinay Prakash v. State of Bihar, (1997) 3 SCC 406 , the Supreme Court relied upon notification in English to be authoritative text where there was ambiguity in such text with the text of the language of the State. The principles of purposive construction of interpretation of statutes also supports the language used in English text. Daily wage appointees have no right or control over their appointments. They are hired and fired at will. Many a times their engagements are ceased, to allow other favoured persons to be accommodated and on other occasions they are not allowed to work either on account of temporary cessation of work, displeasure of the appointing authority, or due to some delay or gap in receiving the financial grants for payment of salaries. Many a times their engagements are ceased, to allow other favoured persons to be accommodated and on other occasions they are not allowed to work either on account of temporary cessation of work, displeasure of the appointing authority, or due to some delay or gap in receiving the financial grants for payment of salaries. In the present case as we have seen above the daily wage services of some of the petitioners were ceased by the appointing authority as soon as they filed contempt petitions to enforce the order passed by this Court on 12.12.95. They were subsequently taken back in daily wage service. The nature of their casual engagement did not give them any permanency in service. The English Text, thus, rightly uses the words continuing in service as such on the date of commencement of the Rules, as an essential condition for consideration for regularisation. The Rules obviously ignore any artificial breaks in service of daily wages appointees, beyond their control. At this place it may be clarified that this Court is not considering any such case, where an employee may have voluntarily given up employment or had taken employment of permanent nature somewhere else. There is nothing on the record to show that the petitioners were not willing to work or that they had given up or abandoned their daily waged employment. All the petitioners were appointed on daily wage basis before 29th June, 1991 and were continuing in service on the date of commencement of the Rules i.e., on 21st December, 2001. In the circumstances I find that the respondents were not justified and have acted illegally and arbitrarily in ignoring the claims of those daily waged petitioners - who were not allowed to work for different periods. The Selection Committee erred in law in ignoring their claims." The same view has again been reiterated in Civil Misc. In the circumstances I find that the respondents were not justified and have acted illegally and arbitrarily in ignoring the claims of those daily waged petitioners - who were not allowed to work for different periods. The Selection Committee erred in law in ignoring their claims." The same view has again been reiterated in Civil Misc. Writ Petition No. 47568 of 2002 Visheshwar v. Principal Secretary, Forest Anubhag-3 and others along with other connected petitions decided on 29.11.2004, learned Single Judge while allowing the said writ petition observed as under: "It is declared that the ignorance of the periods of artificial break in the matter of regularisation in interpreting the word 'continuing in service' in Rule 4(1)(a) of the Rules of 2001 was arbitrary, unreasonable, illegal and thus violative of Articles 14 and 16 of the Constitution of India." The same view has again been reiterated in the case of Janardan Yadav v. State of U.P. and others, 2008 (1) UPLBEC 498. After analysing the provisions of Rule 4(1) of Rules 2001, it has been held as under: "The only requirement under Rule 4(1)(a) are that the incumbent was directly appointed on daily wage basis on a Group 'D' post in a Government service before 29.6.1991 and is continuing in service as such on the date of commencement of the said Rules. The further requirement under clause (b) of Rule 4(1) is that he must have possessed requisite qualification required for regular appointment on that post at the time of such employment on daily wage basis." Learned Standing Counsel could not point out anything to the contrary. In the case of petitioner, there is no denial of the fact that petitioner was engaged in 1986 and was working on the date of promulgation of Rules 2001. In the counter-affidavit, it has been stated that since he has not worked from November 1992 to October 1994, as such, he is not entitled for regularisation. In view of the aforesaid facts and circumstances and legal position, the action of the selection committee in rejecting the claim of the petitioner on the ground of artificial breaks in his service, cannot sustain and the petitioner is entitled to be considered for regularisation. In view of the aforesaid facts and circumstances and legal position, the action of the selection committee in rejecting the claim of the petitioner on the ground of artificial breaks in his service, cannot sustain and the petitioner is entitled to be considered for regularisation. The writ petition, thus, stands finally disposed of with the direction to the respondents to consider the case of the petitioner for regularization in accordance with the Rules 2001 and the observations made herein above and pass a reasoned order within three months from the date of production of a certified copy of this order." 5. In the facts of the present case, it is admitted to the petitioner that he has not worked from July, 1991 to June, 1998. The documents which have been brought before this Court by the petitioner as also the respondent, are to the same effect. Learned counsel for the petitioner also does not dispute that petitioner has not worked during this period. Petitioner at no stage appears to have raised any grievance that he was not permitted to work during this period. The question, therefore, that arises for consideration in the facts of the present case is as to whether mere working of an employee on the two cut-off dates i.e. 29.6.1991 and 21.12.2001 would be sufficient for regularizing services of the employee concerned or he is required to be in continuous employment except artificial breaks given to his working by the respondents. Any period of absence forced by the employer may also have to be excluded for considering claim of regularization. 6. Learned counsel for the petitioner submits with reference to the law laid down in Nanku (supra), Jag Lal and others v. Director, Horticulture, U.P. Government, Lucknow and others, Writ Petition No. 16842 of 2003, decided on 21.5.2003 and Janardan Yadav (supra, that there exist no requirement of continuous working between the two cut-off dates. 7. The submission is opposed by learned Standing Counsel, who submits that continuous working for long period alone creates justification for regularization and in its absence there would be no justification to consider regularizing the services of employee. 8. The issue has since been examined by a Division Bench in Special Appeal No. 47 of 2016, State of UP and others v. Ram Roop Yadav. 8. The issue has since been examined by a Division Bench in Special Appeal No. 47 of 2016, State of UP and others v. Ram Roop Yadav. After noticing the judgments which are relied upon on behalf of the petitioner, the Division Bench has been pleased to observe as under: "We find that the judgment in the case of Sri Ram Yadav (supra) follows the judgment in the case of Janardan Yadav (supra) which, in our opinion, proceeds on complete non-consideration of Hindi version of Rules of 2001. Under the Hindi version of the Rules of 2001 a person is entitled for being considered for regular appointment under the Rules of 2001 only if he has been continuously working since prior to the cut-off date as mentioned in Rules of 2001 i.e. 29.6.1991 and the date of enforcement of Rules of 2001 i.e. 21.12.2001. The Hindi version of the relevant rules reads as follows: Hindi A seven Judges Bench of this Court in Special Appeal No. 622 of 1965 vide judgment dated 13.9.1974 has examined the issue with regards to doubt or ambiguity in any provision in the authoritative english text viz a viz the hindi text and while answering the question it has been held as under: "We are, therefore, of opinion that where there is some doubt or ambiguity in any provision in the authoritative English text, it is permissible to look into the Hindi text to remove the doubt or ambiguity. We accordingly answer the question referred to this Bench in the affirmative." Since in the facts of the case, we find that there had been a break of more than one and a half year in the working of the petitioner during the relevant period as has been admitted on record, it cannot be said that the petitioner had been working continuously as required under the Rules of 2001 so as to be considered for regularization. We may however clarify that there may be cases where there may be artificial break which can be ignored, but the continuous period of one and a half year of non-engagement in our opinion cannot be termed as artificial break. We may however clarify that there may be cases where there may be artificial break which can be ignored, but the continuous period of one and a half year of non-engagement in our opinion cannot be termed as artificial break. For the reasons recorded above, as also in the case of Division Bench judgment of this Court in State of U.P. and others v. Chhiddi and another (supra), we find that the judgment and order of the learned Single Judge cannot be legally sustained and it is hereby set aside. The special appeal is allowed." 9. The view taken in Special Appeal No. 47 of 2016 has also been followed in State of U.P. and others v. Raj Kumar Srivastava and others, (2017) 4 UPLBEC 3359. The Division Bench in State of U.P. and others v. Raj Kumar Srivastava and others (supra) has dealt with the judgment of this Court in Janardan Yadav (supra) and proceeded to observe as under in paragraphs 171 to 175: "171. Reference has been made to the meaning of word of "continuous" and "continuing" given in the Black's Law Dictionary, Oxford dictionary of English, Law Lexicon and Hindi to English dictionary namely Vidhi Shabdawali of Government of India. 172. He has further relied upon the judgment of the learned Single Judge of this Court in Janardan Yadav (supra) and urged that the meaning of "continuing in service" as interpreted by the learned Single Judge may be accepted to hold that the daily wage Registration Clerks would be treated to be "continuing in service" between 29.6.1991 and 9.7.1998, and thus, they would be covered under the Regularization rules 1998 and their regularization, therefore, has to be held to be made in accordance with law. 173. We are afraid to accept the interpretation given by Sri J.N. Tiwari in as much as only artificial breaks or short breaks in service could be ignored for computing "continuous service" or holding that the incumbent was in "continuous service" of the department, for the purpose of regularization. 174. Further the benefit could be given only to those who remained in employment "continuously" or "continuing in service" giving the impression that their services were required continuously though they had been engaged on daily wages basis. 174. Further the benefit could be given only to those who remained in employment "continuously" or "continuing in service" giving the impression that their services were required continuously though they had been engaged on daily wages basis. The persons who had been appointed for few days in one year and did not work continuously for the whole one year or more than that between two relevant dates from 29.6.1991 till 9.7.1998, cannot be said to be in "continuous employment", working on the requirement of the Registration department. They cannot be said to be covered by the meaning of words "continuing in service" under the Regularization Rules' 1998. None of the daily wagers before us could demonstrate otherwise. 175. For the reasons indicated in the preceding part of this judgment and those indicated above, we reaffirm our view that the daily wage registration clerks working in the Registration Department were not entitled to be regularized under the Regularization Rules' 1998. The exercise of regularization undertaken by the State Government in the year 2011 was an illegal exercise." 10. The very object of granting regularization is to make regular the appointments which have been made without following the procedure laid down in law. The intent is to end uncertainty for employees who are working for inordinately long period. This period is specified as 10 years in the Constitution Bench Judgment in Secretary, State of Karnataka and others v. Umadevi (3) and others; (2006) 4 SCC 1 . It is this long length of service which gives justification for framing rules to regularise the services or else the engagement being contrary to recruitment rules itself would be hit by Article 16 of the Constitution of India. Continuous working for long periods, therefore, would be a sine qua non for the grant of relief of regularization in accordance with the rules. Contention that merely working on two dates without necessity of continuance in between (excluding artificial breaks), therefore, cannot be accepted. The petitioner's working in the present case is not found to be continuous (there is a gap of almost eight years). Petitioner's absence also cannot be ignored by treating it to be artificial break nor such absence can be ignored on the ground that it was involuntary and caused by the employers. His claim for regularization under the rules is, therefore, not shown to be covered. Petitioner's absence also cannot be ignored by treating it to be artificial break nor such absence can be ignored on the ground that it was involuntary and caused by the employers. His claim for regularization under the rules is, therefore, not shown to be covered. The decision of the Divisional Director (Forest) suffers from no illegality. The writ petition fails and is, accordingly, dismissed.